Seamon v. Workers' Compensation Appeal Board

LEADBETTER, Judge.1

This case raises a question of first impression regarding the utilization review (UR) provisions of the Workers’ Compensation Act (Act).2 On April 30, 1999, this court granted reargument before the court en banc to consider whether the failure of a utilization review organization (URO) to obtain medical records from all other treating providers, as required by applicable regulations, renders the UR report inadmissible in subsequent proceedings before a Workers’ Compensation Judge (WCJ) to determine the reasonableness and necessity of medical treatment under review.3

*1260On March 28, 1984, Peter Robert Seam-on (claimant) sustained injuries to his neck and back during the course and scope of his employment with Sarno & Son For-máis. As required by the Act, claimant’s medical expenses were paid and he received partial disability benefits. On July 13, 1989, claimant’s partial disability benefits of $14.60 per week were commuted for the remainder of his eligibility.

As a result of his injuries, claimant received chiropractic treatment from Dr. Joseph Gnall until September 1994 when he relocated from Pennsylvania to Tucson, Arizona. Thereafter, beginning September 28, 1994, claimant sought chiropractic treatment in Tucson with Dr. David Welch. On January 6, 1995, Sarno challenged the reasonableness or necessity of Dr. Welch’s treatment of claimant by fifing a request for utilization review pursuant to Section 306(f.l)(6) of the Act, 77 P.S. § 531(6).4 The Bureau of Workers’ Compensation (Bureau) appointed Medical Planning and Review as the URO, which in turn selected chiropractor Jeff A. Behrend as the reviewing doctor. Dr. Behrend reviewed Dr. Welch’s medical file on claimant, which the URO had obtained. In his report to the URO, Dr. Behrend concluded that Dr. Welch’s chiropractic treatment of claimant was not reasonable or necessary. Specifically, Dr. Behrend opined as follows:

The records provided for review, establish an uncomplicated strain/sprain to a 30-year-old male. This would have an expected natural course extending over [8] to [16] weeks. The records indicate that the patient received both medical and chiropractic care during the period between the date of injury and the onset of chiropractic care with Dr. Welch, September 28, 1994. This care is not well defined, but there is evidence that the patient may have received an adequate course of chiropractic care.
Chiropractic care began with Dr. Welch over [10] years after the injury occurred. The patient received protocol of manipulation, traction and massage. This is a passive modality protocol and is usually applied for a period of [8] to [12] weeks.... This would not be an appropriate protocol this long after the injury occurred.
The records provided from Dr. Welch do not provide a clear rationale for continuing chiropractic care at the time treatment was assessed with him, [10] years after the injury occurred. There is no discussion of the patient’s previous treatment plan or clinical outcome. Considering the patient’s history, this would have been appropriate. The records do not provide an adequate rationale to continue the treatment protocol provided by Dr. Welch....

Medical report of Dr. Behrend, dated March 17,1995, at 2-3.

On April 8, 1995, claimant filed a timely utilization review reconsideration request with the Bureau.5 Chiropractor Jess P. *1261Armine performed the second review of Dr. Welch’s treatment. Dr. Armine also reached the conclusion that the treatment delivered by Dr. Welch was not reasonable or necessary. Specifically, Dr. Armine stated in his report that:

It is my professional chiropractic opinion that the care rendered this patient from September 28, 1994 onward is not reasonable and necessary for the following reasons.
There is no documentation showing that this patient required/obtained care on a reasonably continuous basis from the accident of 1984 to the present time. According to the initial intake forms the patient indicates that he had care for approximately 3 years post accident but follow-up care after that is vague at best. Further, there is no objective documentation, diagnostic findings, etc. showing that would lead one to conclude that this patient would require ongoing chiropractic care. Therefore, it is my opinion that the care rendered this patient from 9/28/94 onward is not reasonable and necessary.

Medical report of Dr. Armine, dated May 19, 1995, at 2. Dissatisfied with this outcome, claimant filed a timely utilization review petition on July 5, 1995. A de novo hearing was conducted before a WCJ, in which Sarno had the burden of proving that the treatment rendered by Dr. Welch was not reasonable and necessary.6 In support of his petition, claimant offered into evidence the office notes of Drs. Welch and Gnall. Sarno, in turn, offered the UR reports of Drs. Behrend and Ar-mine. Based on his review of the record, the WCJ issued a decision and order finding that Sarno had met its burden of proving that Dr. Welch’s treatment was not reasonable or necessary. The Workers’ Compensation Appeal Board (Board) affirmed and the present appeal followed.

Claimant asserts that the URO failed to obtain the medical records from his earlier treating doctors, in violation of applicable regulations. He argues that such a failure renders the UR determinations inadmissible, or at least incompetent to support a finding that treatment was not reasonable or necessary, and precludes a “fair and impartial review” by the WCJ of the issue. Even assuming, arguendo, the accuracy of claimant’s factual representations, which employer challenges, he is not entitled to relief.

Claimant is correct that in addition to obtaining the records of the provider under review, the Bureau’s regulations require the URO at least to make reasonable efforts to obtain the available records of all other providers rendering treatment for the work-related injury. Specifically, the regulations provide, in pertinent part:

§ 127.407. Extent of review of medical records.
(a) In order to determine the reasonableness or necessity of the treatment under review, URO’s shall obtain for review all available records of all treatment rendered by all providers to the employe for the work-related injury. However, the UR determination shall be limited to the treatment that is subject to review by the request.
§ 127.459. Obtaining medical records — provider under review.
(a) A URO shall request records from the provider under review in writ-ing_ In addition, the URO may request the records from the provider under review by telephone.
(b) The medical records of the provider under review may not be requested from, or supplied by, any source other than the provider under review.
§ 127.460. Obtaining medical records-other treating providers.
*1262(a) A URO shall request records from other treating providers in writing. In addition, the URO may request records from other treating providers by telephone.
(c) If a URO is not able to obtain records directly from the other treating providers, it may obtain these records from the insurer, employer or the employe.
§ 127.462. Obtaining medical records-duration of treatment.
UROs shall attempt to obtain records from all providers for the entire course of treatment rendered to the employe for the work-related injury which is the subject of the UR request, regardless of the period of treatment review.

34 Pa.Code §§ 127.407(a), 127.459(a), (b), 127.460(a), (c), and 127.462, respectively.

This regulatory scheme clearly contemplates that reviewing doctors assess the reasonableness or necessity of particular treatment in the context of the entire course of care for the work-related injury. A lack of the complete documentary medical history, however, does not automatically preclude a UR doctor from making a determination of reasonableness or necessity; nor does it preclude a WCJ from crediting and relying on the UR report. If a reviewer cannot make a determination due to a lack of medical information, the reviewer is obligated under the regulatory scheme to resolve the issue in favor of the provider and to explain the reason for doing so. See 34 Pa.Code § 127.471(b). Here, although both UR doctors noted the absence of information regarding previous treatment, neither doctor indicated that they could not render an opinion due to the lack of medical records from other treating providers. Both doctors opined unequivocally that for the type of injury noted, ongoing chiropractic care was not warranted.

Moreover, the Act provides that when a petition for review of a UR determination comes before a WCJ, the WCJ is obligated to consider the report as evidence, but is not bound by the report. See Section 306(f.l), 77 P.S. § 531(iv). Similarly, the regulations provide that when a petition for review has been filed, the hearing before the WCJ is a de novo proceeding where the WCJ is required to consider the report as evidence but is not bound by it. See 34 Pa.Code § 127.556. The weight and credibility of the UR report, as with any other evidence, .is for the fact-finder. Any deficiency or irregularity in the UR process can be argued before and considered by the WCJ in determining the weight and credibility of the UR evidence. We also conclude that the de -novo nature of the proceedings insures a fair review; either party is free to offer evidence beyond that considered in the UR process in meeting their burden of proof. Here, employer chose to meet its burden by relying on the UR reports. When the burden shifted to claimant, claimant was free to offer other medical evidence, and in fact submitted handwritten office notes of Dr. Gnall, to rebut employer’s evidence.

Accordingly, we conclude that the URO’s apparent failure in this case to obtain all the records specified by the regulations neither precluded the WCJ from admitting into evidence and considering the UR report, nor did it deprive claimant of a fair hearing on the issue.

The other issues raised by claimant do not merit extended discussion. First, claimant argues that Sarno waived its right to utilization review when an agent of its insurance carrier authorized him to begin treating with Dr. Welch. Even had the WCJ established this uncorroborated hearsay conversation as fact, this would be irrelevant. Pursuant to Section 306(f.l)(6), the reasonableness or necessity of treatment may be subject to prospective, concurrent or retrospective utilization review. Since an employer may petition for review of treatment at any time, any alleged authorization to begin treatment would not preclude a subsequent UR review.

*1263Claimant next asserts that Sarno failed to comply with the requirements that the UR request be filed within 30 days of receipt of the treatment bill in question as required by 34 Pa.Code § 127.404. However, claimant failed to raise this issue before either the WCJ or the Board, and it is therefore waived.

Finally, claimant argues that Sarno failed to comply with 34 Pa.Code. § 131.53(a). Section 131.52(a) of the Code requires the moving party to orally or in writing advise the referee at the first hearing of, inter alia, items and information which are intended to be used as evidence or exhibits. Section 131.53(a) provides, in turn, that within 45 days after the first hearing, the respondent shall submit in writing to the WCJ the items and information specified in § 131.52(a). Specifically, claimant contends that Sarno filed its § 131.53(a) information and exhibits 58 days after the first hearing, rather than 45 days. However, as the Board noted, the only evidence Sarno presented regarding its UR petition were the two UR reports, which had already been admitted into evidence at the first hearing.7 Therefore, the lateness of Sarno’s § 131.53(1) submission was clearly harmless.

Since the UR reports amply supported the determination that the treatment under review was neither reasonable nor necessary, the order of the Board is affirmed.

Judge Friedman dissents.

ORDER

AND NOW, this 9th day of November, 2000, the order of the Workers’ Compensation Appeal Board in the above-captioned matter is hereby affirmed.

. This case was re-assigned to the authoring Judge on September 12, 2000.

. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2626.

. The other arguments made by Peter Robert Seamon (claimant) in this appeal are; (1) that his employer, Samo & Son Formáis (Samo), waived its right to utilization review of certain medical treatment provided to claimant because its insurance carrier allegedly authorized the treatment; (2) that Sarno’s initial request for utilization review was untimely; and (3) that Sarno's submission of evidence after the 45-day filing deadline specified in 34 Pa.Code § 131.53(a) rendered that evidence inadmissible.

Originally, claimant appealed pro se from two adverse orders of the Workers' Compensation Appeal Board; one order affirmed the denial of claimant’s petition to review a utilization review determination and the other affirmed the denial of benefits for hip and ankle injuries. Following appeal to this court (docketed at Nos. 716 and 717 C.D.1998, respectively), the matters were consolidated for our review. In a memorandum opinion dated February 19, 1999, this court remanded for a rehearing on the petition to review the UR *1260determination (No. 716 C.D.1998) and affirmed the denial of benefits for hip and ankle injuries (No. 717 C.D.1998). Seamon v. Workers’ Compensation Appeal Bd. (Sarno & Son Formals), Nos. 716 and 717 C.D.1998 (Pa.Cmwlth.1999). Subsequently, on April 30, 1999, we granted Sarno’s application for reargument in No. 716 C.D.1998, withdrew our prior decision of February 19 and severed the two appeals. Thereafter, a separate opinion addressing the merits of the appeal docketed at No. 717 C.D.1998 was issued. See Seamon v. Workers' Compensation Appeal Bd. (Acker Assoc., Inc.), No. 717 C.D.1998 (Pa. Cmwlth. filed June 23, 1999).

. Section 306(f.l)(6) provides, in pertinent part:

The reasonableness or necessity of all treatment provided by a health care provider under this act may be subject to ... utilization review at the request of an employe, employer, or insurer. The department shall authorize utilization review organizations to perform utilization review under this act. Utilization review of all treatment rendered by a health care provider shall be performed by a provider licensed in the same profession and having the same or similar specialty as that of the provider of the treatment under review.

77 P.S. § 531(6)(i). Sarno's request sought review of Dr. Welch's treatment beginning September 28, 1994, and thereafter.

. Sarno filed its petition for utilization review prior to enactment of the Act 57 amendments, which eliminated the reconsideration phase of the utilization review process. Act of June *126124, 1996, P.L. 350, as amended, 77 P.S. § 531(6).

. See generally Lehigh Valley Refrigeration Serv., Inc. v. Workmen’s Compensation Appeal Bd. (Nichol), 120 Pa.Cmwlth. 434, 548 A.2d 1321, 1323 (1988).

. See Hearing Transcript, dated September 19, 1995, at 8, 19 and 61. It should also be noted that pursuant to 34 Pa.Code § 127.555(b), when a petition for review of a UR determination is filed, the Bureau is required to forward the UR reports to the WCJ assigned to the case.